Bitolas v TAC
[2020] VCC 1736
•18 November 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-05800
| Theopoula Bitolas | Plaintiff |
| v | |
| Transport Accident Commission | Defendant |
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JUDGE: | Judge Tran | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 November 2020 and 5 November 2020 | |
DATE OF JUDGMENT: | 18 November 2020 | |
CASE MAY BE CITED AS: | Bitolas v TAC | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1736 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury - spinal impairment - chronic pain disorder – whether result of accident
Legislation Cited: Transport Accident Act 1986 (Vic), s. 93(17)
Cases Cited: Richards v Wylie (2000) 1 VR 79
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram QC with Mr J Fitzpatrick | Slater and Gordon |
| For the Defendant | Mr P Jens QC with Ms V Katotas | Transport Accident Commission |
HER HONOUR:
1 On 8 July 2011, Paulina Bitolas, then a 16 year old beauty therapy student, was struck from behind by a Nissan Navara 4WD utility when walking along the side of the road. She was flung three metres from the point of impact. Her friends called an ambulance and she was transported to the Northern Hospital. According to the hospital records, she suffered from right foot and left elbow pain, but no neck, chest or abdominal pain. She was discharged that day with analgesics but returned the next day complaining of right neck pain and right foot swelling and pain, but no midline, cervical, thoracic or lumbar spine tenderness. She was again discharged with analgesics.
2 On 11 July 2011, her mother took her to the Royal Children’s Hospital. She had moderate swelling of the dorsum of the right foot. The hospital records showed that she had full range of movement of her cervical spine with mild tenderness on the right side with rotation. There was no thoracic or lumbar spine tenderness however she was noted to have mild tenderness in the right iliac fossa. Once again, she was discharged with analgesics.
3 It is now nine years after the accident. Ms Bitolas is the sole director and shareholder of Illusion Lux, a company which specialises in eyebrow shaping and the cosmetic tattooing of eyebrows. Due, in particular, to Ms Bitolas’ artistry at eyebrow tattooing and social media marketing prowess, the business has been incredibly successful. Ms Bitolas has presented sold-out Master Classes on cosmetic tattooing of eyebrows both in Australia and internationally.
4 However, Ms Bitolas says that she is never free from spinal pain, which radiates throughout her spine including her middle back, neck and lower back and radiates from her neck into her shoulders and from her lower back into her buttocks. She says that the pain is particularly bad in the middle to lower parts of her back.
5 This is a serious injury application. Ms Bitolas claims to have suffered a serious injury as a result of the accident within the meaning of paragraph (a) of the definition of serious injury in s. 93(17) of the Transport Accident Act 1986 (Vic) (“the Act”), in the form of a serious long-term impairment of her spine. In order to succeed, Ms Bitolas must satisfy the Court that the pain and suffering and pecuniary disadvantage consequences of the injury (taken together) can fairly be described as “very considerable” and certainly more than “significant” or “marked”.
6 I have concluded that I am not satisfied that Ms Bitolas has suffered a serious injury, because:
a. I am not satisfied that Ms Bitolas currently suffers a serious long-term impairment of her spine; and
b. in any event, I am not satisfied that the symptoms of which she complains are a consequence or result of the accident on 8 July 2011.
7 I explain my reasons for my conclusions on each of these issues below.
Does Ms Bitolas currently suffer a serious long-term impairment of her spine?
Ms Bitolas’ reports of her symptoms and pain and suffering consequences
8 Ms Bitolas complained of pain and discomfort throughout her spine, including middle back, neck and lower back. The worst pain, she said, was in her middle to lower back. She said that she is never free from spinal pain. She said that the pain in her neck radiates into her shoulders and that the pain in her lower back radiates into her buttocks. She said that she suffers from frequent headaches. She said that at the end of the day she is often crying because of the pain.
9 Ms Bitolas said that the pain interferes with her sleep.
10 Ms Bitolas said that the pain interferes with her intimate relations with her partner. This impact on her libido appears to have only onset after 2018.[1]
[1]No mention of this was made in her first affidavit of 30 October 2018 and she told Dr Serry, psychiatrist, in 2018 that her libido was intact.
11 Ms Bitolas said that it is difficult to get comfortable when sitting and she tends to be up and down because of that discomfort.
12 Ms Bitolas said that her ability to travel by car is limited and she has a significant increase in pain if she is in the car for longer than an hour.
13 Ms Bitolas said that at her old employment at Skin Perfect in Kilmore she was required to work a 40 hour week. She said “I could not do that after sustaining injury and had to leave that work.” She said that she then opened up her own business called Illusion Lux. She said initially she was working 20 hours per week in this business but she was unable to sustain this. In her affidavit of 30 March 2020 she said that “I am no longer working at Illusion Lux Salon which is a business I own and premises I rent…I do go to the business from time to time, and for example would see a client every month or two to maintain a presence but not with anything like the degree of involvement that I was able to maintain initially and even that level of involvement of 20 hours a week was about half my pre-injury working hours”. In her affidavit of 1 May 2020 she said “I have been largely reduced to an onlooker role in which I attend the business from time to time to see how the employees are performing these services but also am able to see one client perhaps every month or two.” In her affidavit of 23 September 2020, she said that her ability to travel to provide services overseas has been significantly compromised and the expansion of her business has been stunted.
14 As to activities, in her affidavit of 30 October 2018, she said she used to go to the snow 4-6 times in a season but had been unable to resume that activity since being injured. She said she used to enjoy bushwalking and day trips but has had to severely cut back these activities.
15 As to medication, in her affidavit of 30 March 2020, Ms Bitolas said she uses Panadol and even then sparingly. In her affidavit of 23 September 2020 and in her oral evidence she said she currently uses Panadol and Nurofen most days of the week plus Melatonin for sleep.
Ms Bitolas’ credit
16 Ms Bitolas was not an impressive witness. She was prone to exaggeration and over-dramatisation and to attribute everything to the accident. She reported that she lost consciousness and “came-to” after the accident, despite the fact that both the Royal Children’s Hospital and Northern Health Hospital records stated that there had been no loss of consciousness. Despite the intensity of pain which she described, it did not occur to her to seek medical advice about her back pain prior to travelling to Thailand to have breast implants inserted because “I didn’t think it would have any relevance”. She said in her affidavit of 30 October 2018 that she had “been unable to resume” snowboarding since the accident. But in fact she had gone on two day trips to Mt Buller since the accident. She said in her affidavit of 30 October 2018 that she was required to work a 40 hour week at Skin Perfect in Kilmore but "could not do that after sustaining injury and had to leave that work”. During cross-examination she said she worked full-time for about four years at Skin Perfect after her injury.
17 In support of her claim to have suffered pecuniary disadvantage, she relied on 40 online enquiries received between September 2019 and November 2019 in which requests for consultations were made, but that she said she was unable to provide. However, as I will explain further below, she travelled to Ibiza in Spain in September 2019 and then travelled intensively internationally and within Australia between November 2019 and February 2020. It is likely that this travel would have prevented her offering a significant number of services during this time in any event. Further, between November 2019 and February 2020 she conducted six two-day intensive Master Classes, which included performing demonstrations of eyebrow tattooing.
18 Ms Bitolas also relied upon a further 37 overseas online enquiries about training between July 2019 and October 2019, 28 of which were from the United States. However, after October 2019, she conducted Master Classes in Canada and London and had plans to conduct at least two and possibly three Master Classes in the United States in July 2020, which were cancelled because of the COVID-19 pandemic.
19 Despite her evidence as to her limited capacity to work she has built up an extraordinarily successful business based largely on her talent and marketing prowess. She agreed under cross-examination that this had taken a lot of hard work. Despite her affidavit evidence as to her limited capacity to attend at the Illusion Lux premises, she accepted that surveillance showed her attending the Illusion Lux premises for more than 40 hours between 6 May and 11 May 2019.
20 Despite her evidence in relation to pain and her limited capacity to travel and to remain in a seated position:
a. she travelled twice on day trips to Mt Buller since the injury;
b. she travelled to Ibiza in Spain for a holiday in September 2019;
c. between November 2019 and February 2020, she conducted two-day Master Classes on eyebrow tattooing in each of Brisbane, Canada, Perth, London, Sydney and Melbourne. In addition, she had holiday stopovers in Singapore and Dubai; and
e. she had plans to conduct a Master Class in Dallas on 7 July 2020 and a Master Class in Los Angeles on 7 July 2020 with the possibility of a third Master Class in New York. These did not go ahead due to the COVID-19 pandemic.
21 Ms Bitolas reports of pain are corroborated by her partner. I do accept that she suffers back pain. However, having considered the above matters and my observations of her in the witness box, I have concluded that her description of her symptoms is over-dramatised and exaggerated.
Medical evidence
22 Ordinarily in an application of this kind, significant weight might be given to treating practitioners and their clinical records. However, aside from Northern Hospital and the Royal Children’s Hospital visits in 2011; a single visit to a general practitioner on 25 August 2011; and a myotherapist who Ms Bitolas visited “intermittently” from around April 2013 to around April 2019, there was no evidence before me from any medical practitioners who treated Ms Bitolas for back pain until May 2017. Indeed, according to her evidence, in 2017 when Ms Bitolas decided that she needed help with her back, she consulted a lawyer.
23 I do not place a great deal of weight on the myotherapist, Ms Melanie Smith, beyond establishing that Ms Bitolas suffered some back pain of the kind which might be assisted by remedial massage or dry needling. Ms Smith apparently did not view the relationship as a formal professional relationship and, given her lack of clinical notes, must have been reliant on memory in her broad-brush description of Ms Bitolas’ symptoms over a period of approximately six years. I prefer the assessment of the medical doctors in relation to Ms Bitolas’ range of motion.
24 There was very little by way of objective evidence in the medical reports which would provide support for Ms Bitolas’ subjective report of symptoms. Mr Russel Miller, an orthopaedic surgeon called by the plaintiff, did find some evidence of degenerative disease. However, in his four reports he changed his views on a number of occasions. His opinion that there was evidence of degenerative disease is not supported by any of the other medical practitioners. Mr Miller diagnosed Ms Bitolas with chronic pain syndrome. Notwithstanding this, he found activities such as driving a car, placing items in a boot of a car and carrying a box to be consistent with his findings.
25 Dr Peter Blombery, a pain specialist called by the plaintiff, also diagnosed a pain syndrome. He reported that Ms Bitolas would be limited in a job where she had to do lifting, twisting and bending but that “Ms Bitolas did not have very much the way of limitations in terms of her everyday activities apart from avoiding lifting heavy objects and having to do weightbearing for prolonged periods of time”.
26 Dr Ales Aliashkevich, a neurosurgeon and spinal surgeon called by the plaintiff, expressed the view that Ms Bitolas has a chronic pain syndrome but acknowledged that he was not a qualified pain specialist and this was outside his expertise. In his report of 30 April 2020, he describes watching video footage which shows Ms Bitolas “moving in an unrestricted manner, lifting and carrying boxes, luggage and water packages with a weight of at least 12 kg, bending to the ground level and pushing boxes”. He says that this footage was consistent with his assessment and examination of Ms Bitolas.
27 Mr Matthew Richards is a pain management physiotherapist who saw Ms Bitolas as part of a pain management program. He reported on 27 March 2019 that prior to the pain management program, Ms Bitolas struggled to cope with daily activities and that this “appears related to her persistent back weakness in relation to her relative inactivity and sensitisation over a long period of time following her motor vehicle accident”. He reported that Ms Bitolas had been provisionally diagnosed with an adjustment disorder with mixed anxiety and depressed mood, in the context of an injury and persistent pain condition, by a multi-disciplinary team. He also expressed the view that “Ms Bitolas is considered likely to gradually improve her pain condition over the coming months.”
28 Dr Nathan Serry, a psychiatrist called by the plaintiff, saw Ms Bitolas on two occasions. In his first report he assessed Ms Bitolas as having a 10% impairment, of which 5% was direct or non-secondary and 5% was secondary or reactive to the physical injuries sustained in the accident. In his report of 8 October 2019, he said that Ms Bitolas continued to present with “symptoms and features of chronic adjustment disorder with anxious and depressed mood and with features of traumatisation”. However, he expressed the view that there were “less prominent anxious concerns and no negative themes apparent” and raises a “possibility” of “additional diagnoses of somatic symptom disorder.”
29 Dr Gary Speck was the orthopaedic surgeon called by the defendant. He expressed the view that the soft tissue injuries Ms Bitolas had suffered in the accident had resolved.
Pecuniary disadvantage
30 In Ms Bitolas’ affidavits and the affidavit of her partner, very generalised assertions are made that Ms Bitolas would be able to earn “considerably” greater income were it not for her symptoms and that her capacity to work in the business, and particularly to travel, has been “considerably” stunted.
31 Under re-examination Mr Bitolas made assertions about her business having lost “so much I couldn’t put a number on it” and (when pressed) “over $2 million” due to her injury. However, it was apparent from Ms Bitolas’ oral evidence that she did not have any real understanding of the financial side of her business, such as employment and other expenses and profit. As senior counsel for Ms Bitolas put it “it’s obvious to me that the plaintiff hasn’t got a full and intricate understanding of the finances of the business”. I do not accept her assertions of loss as reliable.
32 In terms of objective evidence of pecuniary disadvantage, only 37 overseas online enquiries about training are exhibited, the majority in the United States. It was Ms Bitolas’ partner, not Ms Bitolas, who responded to these online enquiries. Two Master Classes were subsequently scheduled for the United States (assuming 20 participants each, this would have been 40 participants) and consideration was being given to a third Master Class. These classes were cancelled, not due to Ms Bitolas’ injury, but due to the COVID-19 pandemic. Her assertions that she would have been able to have been able to do five or six classes in Canada and four times the number of classes in each capital city were essentially expressions of opinion for which no factual basis was presented. Ms Bitolas may have genuinely held this belief but in the absence of detailed and specific evidence in support (such as hundreds of online enquiries, not tens), I do not accept it is reliable.
33 In addition, 40 online enquiries for eyebrow services were tendered. However, it was likely that Ms Bitolas extensive travel plans at or shortly after the time of these enquiries prevented her offering those services, rather than her symptoms.
34 On any view, Ms Bitolas’ business has been extraordinarily successful. I accept that this is due largely to Ms Bitolas’ artistry in eyebrow tattooing and marketing flair. It seems that the real source of profit in this business does not come from charging fees for individual eyebrow or other beauty therapy services in Lancefield or Kilmore. It comes from Ms Bitolas’ prowess at cultivating a social media presence and the monetisation of that presence in the form of fees for Master Classes, online training and selling supplies.
35 Ms Bitolas was able to conduct a very significant amount of international and domestic travel and six Master Classes between November 2019 and February 2020. Ms Bitolas had plans for further travel which were cancelled due to COVID-19. All whilst treating her back pain with only Panadol and Nurofen and massage from her partner. In this context, I am not satisfied on the balance of probabilities that she has suffered any pecuniary disadvantage as a result of her symptoms.
36 In any event, Ms Bitolas evidence was that she left her employment at Skin Perfect in Kilmore because “I could not do that after sustaining injury and had to leave work”. Ms Bitolas was earning less than $45,000 per year working as an employee beauty therapist 40 hours per week at Skin Perfect. In the 2020 financial year, Illusion Lux had gross sales of $844,522 and a profit after tax of $279,928. According to Ms Bitolas’ own evidence, it is her injury which triggered this extraordinarily successful shift in occupation. This fortifies my conclusion that she has not suffered any pecuniary disadvantage.
Are the consequences of any impairment to the spine serious?
37 In the present case, I have accepted that the plaintiff suffers back pain, but I am of the view that the plaintiff’s description of that pain is over-dramatised and exaggerated. I accept that at times it does disturb her sleep. I accept that at times it interferes with her libido, although this is a more recent occurrence and I am not satisfied that this is long-term.
38 In view of the medico-legal reports reviewed above and the surveillance videos they refer to, I do not accept that Ms Bitolas’ symptoms interfere very much at all with her daily activities, except perhaps limiting her capacity to lift heavy objects and repetitively bend and twist. Her symptoms may have placed some limits on her capacity to ski and bushwalk, but they have not totally prevented her from engaging in these activities. I accept she experiences some pain if she sits still for long periods of time, including in a car or a plane. But this pain is not so significant as to prevent her travelling long distances by car or plane.
39 I accept that her symptoms prevent her working for prolonged periods in a single day providing beauty therapy services or eyebrow tattooing. However, her symptoms do not prevent her from:
a. working hard to develop a very successful business;
b. performing sufficient eyebrow tattooing to maintain and cultivate her social media presence;
b. conducting multiple intensive Master Classes which include demonstrations of eyebrow tattooing technique; and
c. engaging in extensive interstate and domestic travel.
40 Ms Bitolas does not take strong painkilling medication. At times her pain has been treated with occasional Panadol. It is now treated with Panadol and Nurofen, with Melatonin to help her sleep.
41 Ms Bitolas’ youth is significant, she is only 26 years of age and is likely to have many years of experiencing back pain ahead of her.
42 Having considered Dr Serry’s views and my own findings as to Ms Bitolas’ credit, I am not satisfied that Ms Bitolas’ is suffering any mental disorder or aggravation of a pre-existing mental disorder as a consequence of impairment of the spine, in the sense required by Richards v Wylie (2000) 1 VR 79. However, I do accept that she finds her ongoing back pain distressing and a source of anxiety.
43 I am not satisfied Ms Bitolas has suffered any pecuniary disadvantage. Even if she has, she is nevertheless able to conduct a very successful and profitable business, notwithstanding her current impairment.
44 Having regard to all of the above considerations, I am not satisfied that Ms Bitolas is suffering an impairment of her spine which is “very considerable” and certainly more than “significant” or “marked”.
Are Ms Bitolas’ current symptoms a consequence or result of the accident?
45 My findings above are sufficient to determine the application. However, I am in any event not satisfied that the symptoms currently complained of by Ms Bitolas are a consequence or result of the transport accident.
46 Ms Bitolas affidavits are vague about the date of onset of the symptoms she describes. She says in paragraph 9 of her first affidavit dated 30 October 2018 that “I subsequently attended the Kilmore Medical Centre with persisting problems particularly involving swelling, pain and tenderness in my right foot but in the longer term these problems have become secondary and the major problem which I have continued to suffer is in my spine [underlining added]”.
47 The records of the Kilmore Medical Centre show that she did indeed present on 25 August 2011 complaining of right lower back pain and right foot and ankle pain. However, there are no subsequent references to back pain in the clinical records of Kilmore Medical Centre; Greenvale Medical Centre, Goonawarra Medical Centre; or Hillcrest Health Centre. There is also no explanation in her affidavits of what “in the longer term” means.
48 The next complaint to a medical doctor in evidence was made to Dr Shehazadi Syed on 22 May 2017 at the Nexus GP Super Clinic. At this appointment, according to both Dr Syed’s report and his clinical records, she complained of chronic back pain dating back 2-3 years. This would put the onset of chronic back pain around 2014-2015, 3 years after the accident. Senior counsel for the plaintiff referred me to an annotation in the Nexus GP Super Clinic medical records “? since accident”. This annotation is not referred to in the report from Dr Syed. The meaning of this annotation is unclear. I do not accept that it detracts from Dr Syed’s evidence, which is that Ms Bitolas reported chronic back pain dating back some 2-3 years prior to 2017. I accept Dr Syed’s evidence on this issue.
49 Ms Bitolas did say under cross-examination that she saw another doctor and complained about back pain. However, she was unable to name the doctor or practice or provide even the year in which this consultation took place. I do not accept this evidence as reliable.
50 Ms Bitolas was able to work full-time as a beauty therapist for four years from around 2013 to 2017. Her own evidence describes ceasing this work because of her back pain and then from this point onwards to being only able to work 20 hours and then not even that.
51 If Ms Bitolas’ did suffer consistent chronic back pain (of the intensity of which she now complains) earlier than 2-3 years prior to 2017, it would have been very easy for her to give evidence to that effect. Dr Speck, who was the Orthopaedic Surgeon retained by the Defendant, squarely raised the question of causation in his report dated 20 January 2020, stating: “Her complaints of back pain appear to have developed during her working life with requirements for staying in various postures….Her current symptoms in the upper and low back are unrelated to the transport accident and are of a muscular ligamentous nature and associated with her work”. It was apparent from the opening submissions of senior counsel for Ms Bitolas that it was understood that this was an issue. Notwithstanding this, in neither of Ms Bitolas’ subsequent affidavits does she provide any clarity as to the onset and progression of her back symptoms since 2011.
52 Senior counsel for the plaintiff relied heavily on the reference to mild tenderness in the right iliac fossa in the records of the Royal Children’s Hospital. He said that Dr Speck’s failure to address this evidence and evidence such as Ms Bitolas myotherapy treatment and complaints of lower back pain to a GP on 25 August 2011, put Dr Speck “out of Court”. However, Dr Speck did describe in his report Ms Bitolas reports of having “some back pain at the time” and “some treatment with a myotherapist”. I am not prepared to reject Dr Speck’s careful opinion on this basis alone.
53 Senior counsel for the plaintiff also relied heavily on the evidence of a myotherapist, Melanie Smith, that Ms Bitolas had been seeing her “intermittently” for remedial massage and myotherapy for approximately 6 years. Ms Bitolas said that Ms Smith provided dry needling and massage. Although I accept that Ms Bitolas did attend at least intermittently for massage and dry needling from about April 2013 to about April 2019, and did report some lower back pain and occasional headaches, I am not prepared to infer from this that Ms Bitolas experienced anywhere near the level of the pain of which she currently complains consistently from July 2011, or even from April 2013, onwards. Had she done so, presumably Ms Smith would have referred Ms Bitolas to a doctor.
54 None of the medical experts called by the plaintiff provide an explanation for the onset (or at highest, aggravation) of Ms Bitolas’ chronic pain symptoms between around 2014 and 2017. Mr Richards says “Before the injury Ms Bitolas was working as a beauty therapist at Skin Perfect, for 38 hours per week [underlining added]”.[2] Whilst Dr Blombery and Mr Miller refer to the fact that she worked as a beauty therapist, they make no mention of the fact that she did so successfully for a period of four years post-injury. Dr Blombery says “It is now almost eight years since the injury and her symptoms are essentially stable.” Dr Aliashkevich refers to the “chronic character of her symptoms since the stated injury”. Mr Miller states that “Ms Bitolas’ injuries have substantially stabilised and have been so since approximately July 2012.”
[2]Although at PCB 122 Mr Richards noted that Ms Bitolas started as a physiotherapist in 2012 and started “to have more back and neck pain due to the sitting in a slouched position” 3-4 years ago.
55 The burden of proof is on Ms Bitolas to satisfy me that her current symptoms are a result of the accident. In light of the lack of explanation for the late onset or aggravation of Ms Bitolas symptoms in the reports of the medical experts relied upon by Ms Bitolas, I do not accept their evidence as to causation. I prefer the evidence of Dr Speck. I am not satisfied that Ms Bitolas’ current symptoms resulted from the accident.
Conclusion
56 I have concluded that I am not satisfied that Ms Bitolas’ current impairment of her spine amounts to a serious injury.
57 I have also concluded that I am not satisfied that the symptoms of which Ms Bitolas currently complains are a consequence or result of the transport accident on 8 July 2011.
58 The application is dismissed. I will hear from the parties as to the appropriate orders to be made.
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Certificate
I certify that these 15 pages are a true copy of the reasons for decision of her Honour Judge Tran, delivered on 18 November 2020.
Dated: 18 November 2020
Jane Le
Associate to her Honour Judge Tran
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